02/26/2025 at 10:00AM
On Wednesday, February 26, 2025, at 10:00 a.m., in room 1324 Longworth House Office Building, the Committee on Natural Resources, Subcommittee on Water, Wildlife and Fisheries will hold an oversight hearing titled “Evaluating the Implementation of the Marine Mammal Protection Act and the Endangered Species Act.”
Witnesses:
- Parker Moore, Principal, Beveridge & Diamond PC, Washington, DC
- Paul Weiland, Partner, Nossaman LLC, Irvine, California
- John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance, Arlington, Virginia
- Daniel Rohlf, Professor of Law, Lewis and Clark Law School, Portland, Oregon [Minority witness]
On June 28, 2024, the Supreme Court (Court) overruled the so-called Chevron framework in a case known as Loper Bright Enterprises v. Raimondo (Loper) in a 6-2 decision. Chevron was a judicial precedent that required courts to defer to agency interpretations of ambiguous laws. In its decision, the Court ruled that the Chevron framework violated Section 706 of the Administrative Procedure Act (APA), which charges the courts with interpreting all relevant questions of law. Accordingly, in its decision, the Court directed federal courts to exercise independent judgment to determine how to interpret federal statutes.
Since taking office again in 2025, President Trump has signed a series of Executive Orders (E.O.), several of which contain provisions related to the Endangered Species Act. In E.O. 14156, entitled “Declaring a National Energy Emergency,” President Trump directs federal agencies to use emergency authorities to expedite permitting for energy projects to “facilitate the Nation’s energy supply.” Federal agencies are required to report to the Secretary of the Interior, Secretary of Commerce, the Office of Management and Budget Director, the Director of the National Economic Council, and the Chairman of the Council on Environmental Quality every 30 days on the progress of permitting energy projects under the ESA during the national emergency. E.O. 14156 also highlights the ESA Committee, sometimes called the “God Squad.” The ESA Committee is made up of at least seven members: the Secretary of Agriculture, the Secretary of the Army, the Chairman of the Council of Economic Advisors, the Secretary of the Interior, the Administrator of the National Oceanic and Atmospheric Administration (NOAA), and at least one individual from each state affected by the proposed action. Section 7(g) of the ESA allows federal agencies or project applicants to request an exemption from the ESA Committee during the Section 7 consultation process if a “jeopardy” biological opinion is levied against a proposed agency action. E.O. 14156 requires the ESA Committee to meet quarterly to review any Section 7 exemption applications it has received. If it has not received any applications, it “shall convene to identify obstacles to domestic energy infrastructure specifically deriving from implementation of the ESA or the Marine Mammal Protection Act.”
For an agency action to receive a “jeopardy” biological opinion, FWS or NMFS must determine the action would jeopardize the continued existence of the species or adversely modify designated critical habitat. An exemption from the ESA Committee would absolve the federal agency or project applicant from any proposed reasonable and prudent alternatives (RPAs). To grant this exemption, the ESA Committee must: determine if any RPAs exist for the action, if the benefits of the action outweigh the benefit of conserving the species, if the action is of regional or national significance, and if no “irreversible or irretrievable commitment of resources” has been made by the federal agency or project applicant. If the ESA Committee determines that each of those factors have been met, they can then grant the exemption. However, if an exemption is granted by the ESA Committee, it must then establish “reasonable mitigation and enhancement measures” to minimize the adverse effects of the action.
President Trump also highlights the ESA in his E.O. 14181 entitled, “Emergency Measures to Provide Water Resources in California and Improve Disaster Response in Certain Areas.” The E.O. also highlights the “God Squad” as a potential mechanism to expedite the operations of the Central Valley Project and the State Water Project, which deliver water through a series of tributaries and dams from Northern California to communities in Central and Southern California.
In addition to President Trump’s actions, Interior Secretary Doug Burgum issued Secretarial Order (S.O.) 3418, titled “Unleashing American Energy.” S.O. 3418 mandates Assistant Secretaries within the Department of the Interior to “suspend, revise, or rescind” certain actions by the Biden administration. Three rulemakings related to the implementation of the ESA that were finalized in 2024 are also included.
The first rule, “Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants,” reinstated the so-called “blanket 4(d) rule” for threatened species.
The second rule, “Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat,” lowers the bar for agencies to designate critical habitat in areas that not currently occupied by the species.
The third rule, “Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation,” made changes to how FWS and NMFS implement Section 7 of the ESA. The rule made changes to the definition of “effects of the action” and “environmental baseline,” and revises provisions related to reasonable and prudent measures when it relates to the incidental take of a listed species. Of particular concern is the elimination of clarifying language that specified that an effects analysis is limited to aspects of the proposed action that are “reasonably certain to occur.”
In the final days of the Biden administration, the FWS denied petitions from the states of Wyoming and Montana, which called for the establishment and delisting of grizzly bears in the Greater Yellowstone Ecosystem (GYE) and Northern Continental Divide Ecosystem (NCDE) in what are known as Distinct Population Segments (DPS). Second, as a part of the proposed rule, the Service proposed creating one DPS, where grizzlies would keep their threatened status, encompassing all six current grizzly bear recovery zones and the areas around them. The DPS would cover almost the entire land area of Idaho, Montana, Washington, and Wyoming.
The Marine Mammal Protection Act of 1972 (P.L. 92-522) (MMPA) was enacted “to conserve marine mammal populations and protect them from extinction or depletion as a result of human activities.” The MMPA, primarily administered by the FWS and NMFS, seeks to conserve and protect marine mammal populations. It does so, in part, by finding that marine species “should not be permitted to diminish below their optimum sustainable population” (OSP). OSP is defined as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.”
In 2000, the MMPA was amended to create the John H. Prescott Marine Mammal Rescue Assistance Grant Program, which has provided more than $75 million in grants to 26 states, two territories, three tribes, and the District of Columbia from 2001 to 2023. In 2018, Congress passed, and President Trump signed in to law, the Endangered Salmon Predation Prevention Act (P.L. 115-329), which gave the Secretary of Commerce the authority to authorize take of sea lions in the Columbia River. Before that, the MMPA was last amended more than 30 years ago in 1994. Those amendments provided a statutory definition of “harassment” as well as criteria for the two levels of harassment, Level A and Level B. Level A harassment is defined as “any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild,”4while Level B harassment is defined as “any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.”
The 1994 amendments also included a requirement to develop stock assessments “for each marine mammal stock which occurs in waters under the jurisdiction of the United States;” created a program to prevent incidental take of marine mammals for commercial fishing; developed exceptions on the take moratorium for marine mammals; and directed the study of how specific mammals like sea lions and seals impact the nation’s federal fisheries.
The MMPA, as amended, contains five main titles. Title I focuses on the prohibition of take of marine mammals, the different mechanisms to obtain an authorization of take for different types to activities and develops the federal regulations governing the administration of the MMPA. Title II establishes the Marine Mammal Commission (MMC) which provides independent, science-based information addressing human impacts on marine mammals. Title III establishes the International Dolphin Conservation program to protect dolphins, whose provisions largely impact the commercial tuna industry. Title IV, enacted in 1992, created the Marine Mammal Health and Stranding Response Program. This program helps coordinate emergency responses to sick, injured, distressed, or dead marine mammals. Finally, Title V includes provisions for the protection of polar bears and polar bear management, including the United States’ participation in the Agreement on the Conservation of Polar Bears with Russia, Norway, Denmark, and Canada.
Title I prohibits the taking or importation of marine mammals or any products of marine mammals but includes authority for the Secretary of Commerce and NMFS to issue exemptions and permits for limited take included in the 1994 amendments. The MMPA defines a take as “to harass, hunt, capture or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”52 It also focuses on maintaining sustainable populations of marine mammals by directing agencies to conduct stock assessments, developing recovery plans for depleted stocks, and providing for the administration of federal regulations related to the MMPA. Commercial fishing implications of the MMPA are also covered under Title I, with guidance for incidental takes and requirements for gear and practices focused on reducing incidental takes.
MMPA also requires regulatory actions to establish a potential biological removal (PBR), which is defined as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population.” The rule also established a PBR of 0.7 whales for the East Coast.
Title I allows the Secretary of Commerce to authorize the “taking by harassment of small numbers of marine mammals of a species or population stock” provided that the Secretary finds that it “will have a negligible impact on such species or stock.”